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Consent - Medical Ethics

Function: to uphold and enhance the patient‟s autonomy – the right to think and act without coercion.



·        Function: to uphold and enhance the patient‟s autonomy – the right to think and act without coercion


·  Code of HDS right 7: to make an informed choice and give informed consent except where any enactment of common law provides otherwise… (The code treats adults and children the same)


·        Consent is a process of communication, openly gives information, honestly answers questions, in a setting and manner that the patient can understand

·        Autonomy:

o  Requires the ability to form beliefs, make decisions, form preferences, form practical intent

o  Problems when these are completely or incompletely lacking, fluctuating, manifestly irrational 

o  = A set of practical skills through which we make and act on decisions which accord with our own values 

o  We should respect autonomy as this gives superior outcomes and because of underlying assumption that individual is best judge of his/her own good

·        Requirements for consent:

o  Competence (ie autonomy)

o  Provision of information

o  Information is understood 

o  Voluntary. Patient has control over the decision – ie lack of negative consequences, accustomed to obeying authority figures, feeling threatening by someone

·        Individual must be able to understand that:

o   They have a choice (no coercion)

o   Why they are being offered treatment

o   What is involved

o   Probably benefits, risks, side effects, failure rates

o   Alternatives

·        When you can‟t get consent: 

o   Children lack legal capability to consent until 16. If patient under 16 doesn‟t want parents to know can‟t tell them.

o   If the are mentally or physically incapacitated 

o   Can NOT use implied consent if the patient is incompetent – need consent of guardian, etc. But must treat in an emergency

·        Presumption of competence: assumed competent until demonstrated otherwise (including children)

o   Varies with complexity of condition and treatment 

o   Ask the patient! Do they understand why treatment is needed, what is involved, benefits, risks and alternatives

·        Children:

o   Issue is not whether to get consent – but how

o   Inconsistency about when they are autonomous:

§  Guardianship Act: 16

§  Common Law (Gillick case 1985) and H&D code: Capacity to make decision

o   Exceptions to age limits and parental consent

§  Emergencies

§  Blood transfusion when life saving (if under 20 years)

§  Compulsory treatment (eg Mental health Act, Tb)

§  Blood alcohol

§  Abortion and contraception (CSA Act 1977): at any age, and no requirement to inform parents

§  Child Abuse examination (CYFS Act 1989)

§  When Guardianship invested in the Court or DG of Social Welfare

§  Good practice to involve the parents wherever possible

o   Consent and the UN Convention on the Rights of the Child

§  The best interests of the child are paramount (article 3)

§  Have the right to express their views and have them taken into account (article 12)

§  Privacy and Confidentiality (article 16)

§  Accessibility of information (article 17)

o   Conflict over consent: 

§  Maori issues: greater expression of autonomy collectively, and collective responsibility for Tamariki. Involve whanau

§  If a child says no – it‟s usually because they are frightened.  Take a child‟s views seriously.

§  Reduce fear by ensuring understanding.  But best interests may be in conflict with their wishes 

§  If parents say no, consider reasonable alternatives and legal (last option). CYPS Act, sections 14 & 67 – child in need of protection. Guardianship Act 1968 may place child under guardianship of the court 

§  Allow time to work it through, plan ahead

§  Avoid rushing important decisions

§  Give information, check it is understood, opportunity to ask questions

§  Enlist supports, Maori/PI staff, translator, etc

·        Consent in Research: 

o   Dates from Nuremberg trials ® Declaration of Helsinki

o   Underlying principle: Concern for patient must be greater than the concern for science

o   Patient has same right to informed consent as with treatment


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